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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN BLODGETT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 965009
 
            CATHOLIC HEALTH CORPORATION,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            RELIANCE NATIONAL INSURANCE   :
 
             COMPANY, Represented by:     :
 
                                          :
 
            SEDGEWICK JAMES, Administrator:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration filed by Susan 
 
            Blodgett, claimant, against Catholic Health Corporation, 
 
            employer, and Reliance National Insurance Company, 
 
            represented by Sedgewick James, administrator, for benefits 
 
            as a result of an alleged injury which occurred on October 
 
            17, 1990 (Transcript, page 3).  A hearing was held in 
 
            Council Bluffs, Iowa on May 13, 1992 and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Jacob J. Peters.  Defendants were represented 
 
            by Melvin C. Hansen.  The record consists of the testimony 
 
            of Susan Blodgett, claimant, Karen Stricklett, 
 
            rehabilitation consultant, Jodi Strehle, vocational 
 
            rehabilitation employee, Michael Newman, vocational 
 
            consultant and joint exhibits 1 through 54.  Both attorneys 
 
            submitted excellent post-hearing briefs.  
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination.
 
            
 
                 Whether claimant sustained an injury, on October 17, 
 
            1990, which arose out of and in the course of her employment 
 
            with employer.
 
            
 
                 Whether the alleged injury was the cause of either 
 
            temporary or permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits and if so, the nature and 
 
            extent of benefits to which she is entitled.
 
            
 
                 Whether claimant is entitled to penalty benefits 
 

 
            
 
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            pursuant to Iowa Code section 86.13(4).
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            her lumbar spine on October 17, 1990, which arose out of and 
 
            in the course of her employment with employer.  
 
            
 
                 Claimant started to work for employer in April of 1990.
 
            
 
                 She was hired by her supervisor, Susan Lorkovic (Ex. 
 
            52, p. 9), as a general duty nurse on a medical surgical 
 
            floor (Ex. 52, p. 10).
 
            
 
                 Claimant testified that she injured her lumbar spine 
 
            while attempting to rescue a confused patient who was 
 
            getting out of bed.  Claimant testified, "I grabbed her and 
 
            maneuvered her back into bed." (Tran., p. 29).  Claimant 
 
            said this was a very big woman and that she prevented the 
 
            woman from hitting the floor.  During the process she 
 
            twisted her back and felt a strong pull and a sharp pain 
 
            near her tailbone.  
 
            
 
                 After the incident claimant was assisted by the house 
 
            supervisor who insisted that claimant make an incident 
 
            report (Tran., pp. 30 & 31).  Bobbie Pearey, employee health 
 
            services manager, testified by deposition that claimant did 
 
            report the incident promptly.  Pearey verified that the 
 
            clinical nursing duty which claimant was performing very 
 
            definitely required lifting and physical work.  Pearey 
 
            testified that her assistant recorded that claimant was 
 
            putting a confused, combative patient back to bed and that 
 
            she twisted the lumbar area of her back while doing it.  
 
            Claimant and Pearey both testified that claimant was 
 
            initially referred to James Rochelle, M.D. (Tran., p.34; 
 
            Exhibit 52, p. 15).
 
            
 
                 Claimant testified that the injury occurred on 
 
            Wednesday, October 17, 1990.  She felt bruising on Thursday, 
 
            October 18, 1990.  On Friday, October 19, 1990, claimant 
 
            testified that she bent over at home and that she could not 
 
            get back up.  She said her back locked up.  Claimant said 
 
            that nothing like this had ever happened before and there is 
 
            no evidence that claimant had any prior back injuries 
 
            (Tran., pp. 32 & 33; Ex. 1, pp. 1-8; Ex. 13, pp. 1-5).  
 
            
 
                 Doctor Rochelle saw claimant on Tuesday, October 23, 
 
            1990.  His x-rays disclosed mild disc space narrowing at 
 
            L4-L5 with a small osteophyte but no acute changes.  He 
 
            diagnosed a probable lumbar disc bulge with left leg 
 
            sciatica and quadricep weakness.   On Tuesday, October 30, 
 
            1990, Dr. Rochelle referred claimant to Alan H. Fruin, M.D., 
 
            a neurosurgeon, to evaluate the finding of quadricep 
 
            weakness by way of a myelogram or an MRI (Ex. 16 & 17).  
 
            
 
                 Claimant testified that when they called her name in 
 
            Dr. Rochelle's office, she stood up, her leg went out, it 
 
            buckled, and she fell to the floor (Tran., p. 35 & 36).  
 

 
            
 
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                 Dr. Fruin saw Claimant on November 2, 1990 for a six 
 
            week history of back and left leg pain which was not 
 
            resolving.  He said claimant had paresthesias in her left 
 
            leg and that she was falling a great deal.  Dr. Fruin 
 
            scheduled an MRI examination (Ex. 18).  
 
            
 
                 A CT scan ordered by Dr. Fruin on November 6, 1990, at 
 
            St. Joseph Hospital raised the question of a moderate sized 
 
            central L4-5 disc herniation, however, the radiologist could 
 
            not be sure due to the patient's obesity which caused 
 
            considerable statistical mottle within the spinal canal 
 
            which reduced the quality of the image.  No definite disc 
 
            herniation or spinal stenosis was detected at L5-S1 but 
 
            again the quality of the image was degraded by the patient's 
 
            obesity (Ex. 14).
 
            
 
                 Claimant testified that her weight at the time of the 
 
            hearing was 330 pounds that it was probably more than that 
 
            at the time of the injury (Tran., p. 83).  
 
            
 
                 An electromyogram and nerve conduction test on November 
 
            16, 1990, showed normal nerve conduction testing and a 
 
            normal EMG in the left lower extremity.  The testing medical 
 
            doctor concluded, "To summarize, the electrical testing is 
 
            currently normal, and without evidence of any injuries to 
 
            myelin or axons at a left lower extremity peripheral nerve, 
 
            left lumbosacral plexus, or left lumbosacral motor nerve 
 
            root level at this time." (Ex. 21).
 
            
 
                 Claimant testified that Dr. Fruin ordered an MRI out in 
 
            west Omaha, but Heartland Rehabilitation, her medical case 
 
            manager transferred her care to Bernard L. Kratochvil, M.D., 
 
            an orthopedic surgeon and that she did not receive the MRI 
 
            at that time (Tran., p. 36).  
 
            
 
                 Jeanette Obal, the Heartland Rehabilitation specialist 
 
            at that time reported on January 19, 1991, that Dr. Fruin's 
 
            treatment plan was rest and symptomatic treatment and that 
 
            he refused to prescribe physical therapy or work hardening.  
 
            She said that Dr. Fruin diagnosed chronic lumbar strain; 
 
            that claimant should not lift greater than 20 pounds; and 
 
            that claimant should alternate sitting, standing and 
 
            walking.  Dr. Fruin was unable to anticipate the date of 
 
            maximum medical improvement or a date of release to return 
 
            to work without restrictions.  Obal reported that at this 
 
            point the course of medical case management was altered and 
 
            an appointment was made with Dr. Kratochvil on January 28, 
 
            1991 (Ex. 31, pp. 2 & 3).
 
            
 
                 Dr. Kratochvil recorded on January 28, 1991, that 
 
            claimant injured her lower back while trying to prevent a 
 
            patient from falling.  She complained of pain in the lower 
 
            back, both buttocks and lower extremities posteriorly.  His 
 
            physical examination disclosed only tenderness to pressure 
 
            in the lower lumbar area.  The straight leg raising test was 
 
            negative on both sides.  There were no neurologic deficits 
 
            in the lower extremities.  Strength was adequate and there 
 
            was no sensory disturbance in the lower extremities.  There 
 
            was no muscle spasm or structural deformity of the back.  
 

 
            
 
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            A.P. view x-rays of the lumbar spine were normal and showed 
 
            the spine as straight.  The lateral view showed narrowing of 
 
            the L4-5 and L5-S1 disc spaces.  No further changes were 
 
            noted.  Dr. Kratochvil diagnosed (1) degenerative discs at 
 
            L4-5 and L5-S1 and (2) lumbar strain/sprain.  He ordered 
 
            physical therapy and medications (Ex. 13, pp. 5 & 6; Ex. 51, 
 
            pp. 5-9).  
 
            
 
                 Dr. Kratochvil stated that the lumbar strain was caused 
 
            by the lifting incident which occurred on August 17, 1990.  
 
            The degenerative disc problem was a wear and tear change or 
 
            an aging change that was not caused by this injury (Ex. 51, 
 
            pp. 9 & 10).  Dr. Kratochvil also agreed that the 
 
            degenerative changes preexisted the strain/sprain (Ex. 51, 
 
            p. 26).  The doctor said the degenerative disc disease was 
 
            not caused by the work but the sprain/strain injury did 
 
            aggravate the preexisting degenerative disc disease (Ex. 51, 
 
            pp. 28 & 29).  
 
            
 
                 Furthermore, Pearey, the manager of employee health 
 
            services for employer, testified that there was no evidence 
 
            that claimant had any prior back injuries (Ex. 52, p. 9) and 
 
            that she did not have any reason to believe that claimant 
 
            was injured off the job (Ex. 52, p. 14).  
 
            
 
                 Wherefore, it is determined that all of the medical and 
 
            nonmedical evidence in this case support the determination 
 
            that claimant sustained an injury to her lumbar spine on 
 
            October 17, 1990, while handling a patient which arose out 
 
            of and in the course of her employment with employer.
 
            
 
                                causal connection
 
            
 
                 It is determined that the injury of October 17, 1990, 
 
            to claimant's lumbar spine was the cause of both temporary 
 
            and permanent disability.  
 
            
 
                 The same evidence which proves that the employment was 
 
            the cause of the claimant's injury also establishes that the 
 
            injury was the cause of both claimant's temporary disability 
 
            and permanent disability.  Dr. Kratochvil attributed 
 
            claimant's entire problem to this injury (Ex. 51, p. 9, 10, 
 
            26, 28, 29).  Claimant gave a consistent history to her 
 
            supervisors at work and to all of the doctors.  This history 
 
            was not disputed by any of her supervisors, the manager of 
 
            employee health services, other employer representatives, 
 
            the insurance company, counsel for the defendants, Dr. 
 
            Rochelle, Dr. Fruin, or Dr. Kratochvil.  Dr. Kratochvil 
 
            testified that he did not believe that claimant had any 
 
            trouble prior to this incident (Ex. 51, p. 28).  Claimant 
 
            denied and there is no evidence of any prior back problems.
 
            
 
                 Wherefore, it is determined that the injury of October 
 
            17, 1990, to claimant's lumbar spine while assisting a 
 
            patient was the cause of both temporary and permanent 
 
            disability.  
 
            
 
                    entitlement-temporary disability benefits
 
            
 
                 It is determined that claimant is entitled to 45.429 
 

 
            
 
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            weeks of healing period benefits.  She is entitled to 36 
 
            weeks of healing period from October 19, 1990 through June 
 
            27, 1991.  She is entitled to an additional 9.429 weeks of 
 
            healing period benefits for the period from March 4, 1992 
 
            through May 8, 1992.  
 
            
 
                 Claimant's healing period begins on October 19, 1990 
 
            for the following reasons.  First, claimant testified that 
 
            the injury occurred on October 17, 1990.  She felt bruising 
 
            but worked on October 18, 1990.  On the third day after the 
 
            injury, October 19, 1990, she was unable to work and talked 
 
            to the employee health nurse.  "I was instructed to see a 
 
            doctor." (Tran., p. 33).
 
            
 
                 Second, Pearey, the employee health services manager, 
 
            testified that claimant reported the injury and about two 
 
            days later she called in ill due to back pain (Ex. 51, p. 
 
            11).  Third, the records of Dr. Rochelle verify that 
 
            claimant was able to complete working her shift on the day 
 
            of the injury (October 17, 1990) and that she was able to 
 
            work the next day (October 18, 1990) but that she has been 
 
            off work since that time (October 19, 1991) (Ex. 17).  
 
            
 
                 Dr. Rochelle referred claimant to Dr. Fruin on October 
 
            31, 1990.  Dr. Fruin issued a slip on November 2, 1990, that 
 
            claimant should be off work until further notice (Ex. 19).  
 
            Dr. Fruin never did return claimant to work.  He was unable 
 
            to anticipate the date of maximum medical improvement or a 
 
            date of release of return to work without restriction (Ex. 
 
            31, p. 3).  As late as May 15, 1991, Dr. Fruin said that he 
 
            told claimant that he thought she would eventually improve 
 
            but that in all likelihood it would take months (Ex. 20).  
 
            
 
                 When Dr. Kratochvil first saw claimant on January 28, 
 
            1991, he continued to keep her off work (Ex. 13, p. 6).  
 
            When Dr. Kratochvil allowed claimant to return to work on 
 
            February 28, 1991, it was only on a part-time, trial basis 
 
            for a temporary period of time while he continued to treat 
 
            claimant with physical therapy and prescription medications.  
 
            When Dr. Kratochvil returned claimant to work in March of 
 
            1991 claimant had specific restrictions of not doing 
 
            anything strenuous (Ex. 3).  He made it clear that this was 
 
            not a release for full-time work and that a permanent 
 
            impairment had not yet been established as of February 28, 
 
            1991 (Ex. 3).  
 
            
 
                 Claimant described how she made a good faith effort to 
 
            work in March of 1991 but contended that she was unable to 
 
            do it (Tran. pp. 40-48).  Claimant testified that Dr. 
 
            Kratochvil said, "If you can work, work.  It you can't, 
 
            don't work.  If you can't work, you can't work, is what he 
 
            said.  And at that point, I couldn't."  Therefore Dr. 
 
            Kratochvil wrote on April 1, 1991 that claimant was to 
 
            remain off work until further notice because of her 
 
            degenerative disc disease and lumbar sprain/strain (Ex. 4).  
 
            
 
                 On April 4, 1991, an MRI of the lumbar spine without 
 
            contrast was performed at the request of Dr. Kratochvil.  
 
            The radiologist stated that the patient is quite obese 
 
            weighing 300 pounds.  She also moved during the examination.  
 

 
            
 
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            This detracted from the quality of the study.  However, he 
 
            believed that he had obtained some helpful information from 
 
            the scan.  At L4-L5 he found moderate degeneration and 
 
            moderate protrusion of the disc to the left.  At L5-S1 he 
 
            found mild degeneration and mild posterior protrusion to the 
 
            left (Ex. 15).
 
            
 
                 On May 2, 1991, Dr. Kratochvil clinically could only 
 
            find tenderness to pressure in the lower back.  Leg raising 
 
            was negative there was no neurological deficit.  He 
 
            recommend she see Dr. Fruin again.  He also suggested a 
 
            caudal block and a lumbar myelgram.  He also suggested a 
 
            functional capacity assessment.  He concluded that she had 
 
            not reached a maximum medical improvement unless she decides 
 
            to forego any further procedures.  He felt it was too soon 
 
            to determine permanent impairment as well (Ex. 6, p. 3).  On 
 
            May 2, 1991, Dr. Kratochvil said he did not believe claimant 
 
            had reached maximum medical improvement (Ex. 6, p. 3).
 
            
 
                 On May 15, 1991, Dr. Fruin reported that he saw 
 
            claimant on May 10, 1991, due to her longstanding chronic 
 
            lumbar strain.  He said the MRI scan did show significant 
 
            degeneration of her lumbar discs, but there is no evidence 
 
            of herniation and there was certainly no clinical suggestion 
 
            of a neurological impairment.  He said it would be months 
 
            before she realized improvement from this condition.  He 
 
            recommended that she find work that did not require 
 
            significant standing, lifting or repetitive bending.  He 
 
            recommended only symptomatic care of simple analgesics and 
 
            anti-inflammatory agents for her complaints (Ex. 20).
 
            
 
                 The functional capacity assessment was conducted on May 
 
            17, 1991 by John Dobler, a physical therapist.  He reported 
 
            on May 21, 1991, that claimant reported increased symptoms 
 
            in her low back with all activities.  He said the validity 
 
            of the test indicated that claimant may have a focus on her 
 
            pain and limitations.  He said the test results were only 
 
            conditionally valid representations of claimant's present 
 
            physical capabilities because the test results represented 
 
            only what claimant perceived as her capabilities and that 
 
            working beyond these levels would probably elicit symptoms 
 
            that she would find painful and problematic.  He added that 
 
            her functional capabilities had decreased since she 
 
            participated in his flexibility and strengthening program in 
 
            February of 1991.  He indicated she would be a good 
 
            candidate for a comprehensive pain management program which 
 
            would address her physical condition, pain management and 
 
            coping skills (Ex. 24).  
 
            
 
                 Dr. Kratochvil explained that the term "conditionally 
 
            valid" was a term used when the physical examiner was not 
 
            able to get complete cooperation from the patient or if the 
 
            patient had discomfort performing some of the tests.  He 
 
            said it usually indicates that the functional capacity 
 
            assessment doesn't give a complete picture of what the 
 
            patient is able to do (Ex. 51, p. 22).  
 
            
 
                 On May 29, 1991, Dr. Kratochvil noted that Dr. Fruin 
 
            agreed that only symptomatic care of simple analgesics and 
 
            anti-inflammatory agents were indicated for this patient.  
 

 
            
 
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            He noted that the functional capacity assessment was only 
 
            conditionally  valid but the test indicated that she could 
 
            perform tasks in the sedentary work category with limited 
 
            walking and standing tolerances.  Dr. Kratochvil said he had 
 
            suggested (1) a caudal block, (2) a lumbar myelogram, (3) an 
 
            MMPI evaluation and (4) a pain management clinic at the 
 
            University of Nebraska but that claimant was not 
 
            particularly receptive to any of these ideas.  He said he 
 
            had nothing further to suggest in the way of treatment.  He 
 
            added that her work capacities as outlined in the functional 
 
            capacity assessment were probably only temporary.  He 
 
            estimated that she had a 5 percent permanent partial 
 
            impairment of the whole person as a result of this injury.  
 
            However he did not specifically state whether claimant had 
 
            obtained maximum medical improvement as of May 29, 1991 (Ex. 
 
            7). 
 
            Dr. Kratochvil did clarify and specify on June 27, 1991, 
 
            "Susan Blodgett has reached maximum medical improvement and 
 
            has a 5 percent permanent impairment of the whole person as 
 
            a result of her injury in October of 1990.  There are other 
 
            forms of treatment and evaluation, but at her last visit she 
 
            was not receptive to those suggestions."  (Ex. 8).  
 
            
 
                 Dr. Kratochvil, who is a board certified orthopedic 
 
            surgeon and who has been practicing orthopedic surgery for 
 
            20 years (Ex. 51, p. 6) testified, "She was looking for some 
 
            easy answer, as far as I could tell, and there were none." 
 
            (Ex. 51, p. 19).  Dr. Kratochvil added that when she left he 
 
            got the impression that claimant was not coming back (Ex. 
 
            51, p. 20).  Therefore, Dr. Kratochvil testified that on 
 
            June 27, 1991, he determined that claimant had reached a 
 
            maximum medical improvement (Ex. 51, p. 39) and determined 
 
            that claimant had sustained a 5 percent permanent impairment 
 
            of the whole person as a result of this injury ( Ex. 51, p. 
 
            41).  
 
            
 
                 An unreasonable refusal by an employee to accept 
 
            medical treatment may be the basis for terminating healing 
 
            period benefits.  Johnson v. Tri City Fabricating and 
 
            Welding Company, 33 Biannual Report, Iowa Industrial 
 
            Commissioner 179 (Appeal Decision 1977).  At the same time a 
 
            reasonable refusal of medical treatment should not be the 
 
            basis for terminating healing period benefits.  Bruneau v. 
 
            Insulation Service Inc., 1 Iowa Industrial Commissioner 
 
            Report 34, 35 (Appeal Decision 1981); Decker v. Hartford 
 
            Auto Sales, Inc., 2 Iowa Industrial Commissioner Report 105 
 
            (1982); Adams v. Happel & Sons, Inc., 34 Biannual Report, 
 
            Iowa Industrial Commissioner 11 (1979); Wachsman v. Mason 
 
            City Tile & Marble Co., 32 Biannual Report, Iowa Industrial 
 
            Commissioner 165 (1975); Arnaman v. Mid America Freight 
 
            Lines, I-3 Iowa Industrial Commissioner Decision 497 (1985); 
 
            John Deere Davenport Works, II-1 Iowa Industrial 
 
            Commissioner Decisions 305 (1984); Smith v. Wayne County, 
 
            I-1 Iowa Industrial Commissioner Decisions 232 (1984). 
 
            
 
                 It is determined that claimant's refusal of a caudal 
 
            block, a myelogram, a Minnesota multi-basic inventory (MMPI) 
 
            and treatment at a pain management center did not constitute 
 
            unreasonable refusal of medical treatment.  A caudal block 
 
            and a myelogram require a spinal injection which is a 
 

 
            
 
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            physically invasive procedure and entails some serious 
 
            risks.  Patients are normally required to sign a waiver of 
 
            liability and acknowledge that they have been informed that 
 
            these procedures could result in paralysis or death.  
 
            Claimant, a registered nurse, testified that her experience 
 
            with patients who had received caudal blocks was that they 
 
            were not successful.  Furthermore, she added that she had a 
 
            spinal tap when she had encephalitis as a teenager and that 
 
            it was a very traumatic experience and as a result of that 
 
            she had a fear of spinal injections (Tran., pp. 49 & 50).  
 
            Dr. Kratochvil understood and explained that claimant's fear 
 
            was not unusual.  He testified, "I think that she just 
 
            didn't like the idea of having a needle put in the lower 
 
            back, which a lot of people feel that way about it." (Ex. 
 
            51, p. 16).
 
            
 
                 It is the agency expertise of this deputy that caudal 
 
            blocks frequently do not provide any relief from pain, and 
 
            in the few instances where they have been successful they 
 
            only provided temporary relief for a matter of a few hours.
 
            
 
                 With respect to the myelogram, it was not necessary 
 
            because both Dr. Fruin and Dr. Kratochvil agreed that 
 
            claimant was not a surgical candidate.  In addition, 
 
            claimant had x-rays, a CT scan and a MRI and there was no 
 
            evidence that a myelogram was essential to her diagnosis or 
 
            treatment of a lumbar sprain/strain.
 
            
 
                 There is no evidence medical or nonmedical, from either 
 
            Dr. Fruin, Dr. Kratochvil or any other source that a 
 
            myelogram or a caudal block would have improved claimant's 
 
            back strain.  Nor was there any such evidence that MMPI or 
 
            treatment at a pain management facility, both of which are 
 
            usually psychologically invasive procedures, would have 
 
            added anything to the diagnoses of lumbar back 
 
            strain/sprain, improve claimant's condition or significantly 
 
            altered the course of improvement of her condition.
 
            
 
                 Even though claimant requested evaluation and treatment 
 
            at the University of Nebraska Medical Center Pain Clinic and 
 
            Dr. Kratochvil prescribed it on August 26, 1991, there is no 
 
            evidence that the insurance carrier authorized this 
 
            treatment or that claimant attended this treatment.  
 
            Furthermore, there is no evidence that if claimant had 
 
            attended the pain clinic her condition would have been 
 
            improved.  Dr. Kratochvil testified that the program 
 
            attempts to wean claimants from medications and is geared to 
 
            get the individual to learn to live with their problem (Ex. 
 
            51, pp. 32 & 33).
 
            
 
                 Wherefore, it is determined that claimant's refusal of 
 
            these four procedures was not unreasonable and it does not 
 
            require a termination of temporary weekly benefits.
 
            
 
                 Nevertheless, claimant's refusal of these four 
 
            procedures by the board certified treating orthopedic 
 
            surgeon, with 20 years of experience, place Dr. Kratochvil 
 
            in the position to state legitimately that he had nothing 
 
            further to offer claimant and supported his conclusion of 
 
            June 27, 1991, that claimant had attained maximum medical 
 

 
            
 
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            improvement.  
 
            
 
                 Claimant attempted to make out a case for additional 
 
            healing period benefits by virtue of the fact that Dr. 
 
            Kratochvil testified that after June 27, 1991 claimant 
 
            remained in his care and that she was unable to work and 
 
            that he had not released her to return to work (Ex. 51, p. 
 
            29-38).  However, Iowa Code section 85.34 (1) states that 
 
            healing period terminates when the first of the three 
 
            conditions occurs.  The first condition to occur was the 
 
            determination of Dr. Kratochvil that claimant had attained 
 
            maximum medical improvement on June 27, 1991.  It still 
 
            never has been determined that claimant could return to work 
 
            or even return to substantially similar employment.
 
            
 
                 An examination of Dr. Kratochvil's notes and reports 
 
            and his deposition testimony do not show any improvement 
 
            between June 27, 1991 and March 4, 1992, when Dr. Kratochvil 
 
            prescribed and claimant agreed to participate in a physical 
 
            therapy/work hardening program which did in fact improve her 
 
            condition.  Between June 27, 1991 and January 7, 1992, Dr. 
 
            Kratochvil stated that his notes indicated that she might 
 
            require some occasional physical therapy or occasional 
 
            medication but there is no evidence of any improvement in 
 
            her condition until after she began the physical 
 
            therapy/work hardening program on March 4, 1992 (Ex. 51, pp. 
 
            38-41).  
 
            
 
                 Dr. Kratochvil did write the prescription for the pain 
 
            clinic on August 6, 1991 at claimant's request but there is 
 
            no evidence that she participated in the pain clinic program 
 
            (Ex. 51, p. 32; Ex. 9).  It is quite possible that 
 
            defendants denied her this treatment, since claimant 
 
            requested this treatment.
 
            
 
                 Claimant contended that the physical therapy/work 
 
            hardening program and the pain clinic were denied to her in 
 
            the fall of 1991, but that she was authorized to begin the 
 
            physical therapy/work hardening program on March 4, 1992.  
 
            An authorization was signed by Dr. Kratochvil on March 4, 
 
            1992 (Ex. 12).  Claimant testified that the program was 
 
            wonderful and she began getting stronger (Tran. pp. 65-68).  
 
            Dr. Kratochvil renewed the prescription for the work 
 
            hardening program again on April 24, 1992 (Ex. 51, p. 33 & 
 
            Deposition Ex. 6).
 
            
 
                 Dr. Kratochvil testified that he did not see claimant 
 
            between May 29, 1991 and April 24, 1992.  When he did see 
 
            her on April 24, 1992, she was in the work hardening 
 
            program, and she was feeling better.  It seemed to be doing 
 
            some good.  Claimant was again receptive to getting back to 
 
            work as a nurse (Ex. 51, p. 43).  
 
            
 
                 Claimant was in the work hardening program at the time 
 
            of Dr. Kratochvil's deposition testimony (Ex. 51, p. 45).  
 
            Dr. Kratochvil testified that when claimant completed the 
 
            work hardening program on May 8, 1992, she would have 
 
            attained maximum medical improvement a second time (Ex. 51, 
 
            p.21 & 25).  Dr. Kratochvil stated that the physical 
 
            therapy/work hardening program he authorized on March 4, 
 

 
            
 
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            1992, was an attempt to get claimant back to work through 
 
            additional physical conditioning.  He testified that it did 
 
            improve her condition.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to a second period of healing when she began showing 
 
            improvement again from March 4, 1992, until the completion 
 
            date of the physical therapy/work hardening program on May 
 
            8, 1992, a period of 9.429 weeks.  
 
            
 
                 In conclusion, it is determined that claimant is 
 
            entitled to healing period benefits from the date she was 
 
            first unable to work on October 19, 1990, until Dr. 
 
            Kratochvil determined that she had attained maximum medical 
 
            improvement on June 27, 1991, a period of 36 weeks.  It is 
 
            further determined that claimant is entitled to a second 
 
            period of healing while claimant was in the physical 
 
            therapy/work hardening program from March 4, 1992 through 
 
            May 8, 1992, a period of 9.429 weeks.  Claimant's total 
 
            entitlement to healing period benefits then is 45.429 weeks 
 
            of temporary total healing period benefits.
 
            
 
                         entitlement-permanent disability
 
            
 
                 It is determined that claimant has sustained a 30 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 150 weeks of permanent partial disability 
 
            benefits.  
 
            
 
                 Claimant contended that she sustained a 50 percent 
 
            industrial disability to the body as a whole.
 
            
 
                 Claimant's injury is sprain/strain of the lumbar spine 
 
            which aggravated her moderate degeneration and protrusion of 
 
            the L4-5 disc on the left and her mild degeneration and mild 
 
            posterior protrusion of the L5-S1 disc to the left.  The 
 
            disc disease was issustrated by x-ray, a CT scan and MRI.  
 
            Dr. Fruin recommended only symptomatic treatment of simple 
 
            analgesics and anti-inflammatory agents (Ex. 20).  Dr. 
 
            Kratochvil concurred in this recommendation (Ex. 7).  
 
            Surgery has never been recommended.  
 
            
 
                 Claimant has suffered a significant amount of 
 
            depression during the course of her recovery.  Dr. 
 
            Kratochvil referred to it several times in his records and 
 
            in his deposition testimony.  However, Dr. Kratochvil 
 
            testified, "I don't think it's directly related.  I think 
 
            that her depression is probably related to a lot of her 
 
            personal problems." (Ex. 51, p. 36).  
 
            
 
                 Claimant was seen by John V. Fernandez, M.D., a 
 
            psychiatrist at the request of her attorney on October 8, 
 
            1991.  Among other things, Dr. Fernandez noted (1) her 
 
            inability to work in the intensive care unit anymore, (2) 
 
            her restriction to sedentary work, which she had not been 
 
            able to find and (3) her inability to drive for more than 40 
 
            minutes without experiencing pain.  He noted that she had 
 
            always had a problem with obesity weighing between 295 pound 
 
            and 330 pounds and that her obesity aggravated her back 
 
            condition.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 The doctor also noted mixed insomnia, deteriorating 
 
            energy levels and no motivation to do anything at all.  He 
 
            also mentioned social withdrawal, pessimistic attitude, 
 
            crying spells, poor concentration, forgetfulness, increased 
 
            irritability and increased temper outbursts.  Dr. Fernandez 
 
            mentioned that claimant has hypertension controlled by 
 
            medication and that she is also an insulin dependent 
 
            diabetic.  He said that the patient is preoccupied with her 
 
            multiple social problems and her depressive symptoms.  He 
 
            diagnosed a major depressive disorder, probably reactive to 
 
            the series of events that had afflicted her, which would 
 
            include this injury and its consequent problems (Ex. 26).
 
            
 
                 Defendants did provide claimant with some weight 
 
            reduction assistance in January of 1991 (Ex. 22).
 
            
 
                 Dr. Kratochvil assessed a 5 percent permanent 
 
            impairment to the body as a whole caused by the lumbar 
 
            sprain/strain which aggravated claimants degenerative disc 
 
            disease.  None of the other physicians, Dr. Rochelle or Dr. 
 
            Fruin determined a permanent impairment rating.  
 
            
 
                 With respect to restrictions, Dr. Fruin recommended on 
 
            May 15, 1991 that claimant find a job that does not require 
 
            her spending significant time on her feet.  He added that 
 
            the job should not involve significant lifting or repetitive 
 
            bending (Ex. 20).  Dr. Kratochvil concurred in the same 
 
            restrictions on May 29, 1991 (Ex. 13, p. 8).
 
            
 
                 Defendants have been critical of the functional 
 
            capacity assessment performed on May 21, 1991, because of 
 
            its highly subjective rather than objective conclusions and 
 
            claimant's failure to cooperate in her own recovery.  The 
 
            examiner reported (1) increased symptoms with all 
 
            activities, (2) a focus on her pain and limitations, (3) 
 
            that anger was an influence, and (4) that claimant had 
 
            become physically deconditioned from earlier gains from 
 
            physical therapy.  The examiner reported that the physical 
 
            capacity assessment was only conditionally valid because it 
 
            was based upon claimant's perceived capabilities because 
 
            claimant felt that working beyond these levels might be 
 
            painful or problematic.  Nevertheless, the conclusion of the 
 
            examiner was that due to limited walking and standing 
 
            tolerances claimant should be able to perform sedentary work 
 
            (Ex. 24).  
 
            
 
                 Dr. Kratochvil testified in his deposition that he 
 
            would concur in the functional capacity assessment 
 
            recommendations even though they were only conditionally 
 
            valid (Ex. 51, p. 24) and even though he stated on May 29, 
 
            1991, that these results were probably temporary at that 
 
            time (Ex. 7, p. 2).  Dr. Kratochvil concluded, "Basically, 
 
            she shouldn't do any strenuous bending or lifting and she 
 
            shouldn't be expected to be on her feet for long periods of 
 
            time.  In other words, she should have a job where she can 
 
            sit and stand and walk whenever she feels a desire to do 
 
            so." (Ex. 51, p. 24).  
 
            
 
                 Dr. Kratochvil said that claimant could work as a nurse 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            but there would have to be some restrictions on her job 
 
            activities of no strenuous bending or lifting (Ex. 51, p. 
 
            24).  Dr. Kratochvil agreed at another point that claimant 
 
            was employable according to her previous functional capacity 
 
            assessment and that she might require occasional physical 
 
            therapy or occasional medication (Ex. 51, pp. 40 & 41).  Dr. 
 
            Kratochvil further testified a third time that he thought 
 
            claimant was employable according to the restrictions of the 
 
            functional capacity assessment and that in his opinion he 
 
            thought they were still valid (Ex. 51, p. 44).
 
            
 
                 Karen Stricklett, M.S., C.R.C., D.I.R.S., A.B.V.E., a 
 
            private rehabilitation consultant, interviewed claimant on 
 
            August 26, 1991, wrote a report on August 15, 1991 and 
 
            testified at the hearing on August 13, 1992.  Stricklett 
 
            testified that sedentary employment is limited to lifting 10 
 
            pounds maximum, working while seated six of eight hours and 
 
            minimal standing and walking (Ex. 97, p. 3).  She testified 
 
            that claimant's previous employments of nurse aid, licensed 
 
            practical nurse, private duty nurse and general duty nurse 
 
            were classified as medium work which requires lifting up to 
 
            50 pounds.  Claimant's previous job as a phlebotomist is 
 
            classified as light work which is typically lifting up to 20 
 
            pounds.  
 
            
 
                 Stricklett determined using her computer program that 
 
            prior to this injury claimant had access to the employment 
 
            market of 20.54 percent whereas after the injury her access 
 
            was only 5.19 percent, which reflects a 75 percent loss of 
 
            access to the Omaha Council Bluffs labor market, based upon 
 
            the physical restrictions described by Mr. Dobler and Dr. 
 
            Kratochvil (Tran., p. 92; Ex. 27, p. 8).  Stricklett 
 
            testified that her computer program was, "A very general 
 
            tool - the figures that we get from running that program are 
 
            not cut and dried, it just gives us some ideas as to how 
 
            that person's employability has been impaired." (Trans., p. 
 
            95).  Stricklett named several specialized hybrid type jobs 
 
            that claimant could perform (Ex. 27, p. 8) but testified 
 
            that it does not necessarily mean that she would qualify for 
 
            those jobs.  They are specialized jobs.  They are few and 
 
            far between.  They are difficult to obtain (Tran. pp. 97 & 
 
            98).  
 
            
 
                 Stricklett testified that claimant would require 
 
            selective job placement assistance which requires marketing 
 
            the client to the employer and even offering the employer 
 
            hiring incentives (Tran., pp. 98 & 99).  Stricklett 
 
            testified that you have to go out and sell that employee 
 
            (Tran., p. 99).  She said you might have to do a hard sell 
 
            and negotiate some sort of an on-the-job training contract 
 
            in order to find an employment opportunity for the client 
 
            (Trans., p. 100).  Stricklett testified that in this case it 
 
            would require selective placement assistance (Tran., p. 
 
            101).  
 
            
 
                 Stricklett estimated that claimant earned $650 a week 
 
            for the twenty-six weeks preceding her injury and that with 
 
            selective placement in one of the remaining specialized jobs 
 
            in the nursing field that claimant could earn $400 to $600 
 
            per week, which constituted an immediate wage loss somewhere 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            between 8 percent and 38 percent (Ex. 27, pp. 8 & 9).  
 
            
 
                 In her report Stricklett testified "A reasonable 
 
            estimate of the extent of industrial disability relative to 
 
            Ms. Blodgett's permanent impairment and physical 
 
            restrictions would appear to fall within the 20 percent to 
 
            25 percent range." (Ex. 57, p. 10).  At the hearing 
 
            Stricklett testified that after listening to claimant 
 
            testify she would estimate that claimant's industrial 
 
            disability was now much higher because her condition had 
 
            deteriorated but at the same time Stricklett acknowledged 
 
            she had no new medical evidence to support this conclusion.  
 
            Stricklett concluded by testifying that using aggressive 
 
            selective placement that she could find claimant a full-time 
 
            job in her career field (Tran., p. 103).  There was no 
 
            evidence from either party as to why Stricklett had not been 
 
            hired to do so.  
 
            
 
                 Michael L. Newman, M.S., CVE, a vocational 
 
            rehabilitation consultant and part-owner of Heartland 
 
            Rehabilitation did not interview claimant personally but 
 
            gave a report dated September 5, 1991, based upon various 
 
            written materials that he had examined (Ex. 28; Tran. pp. 
 
            134, 135 & 143).  Newman determined that the restrictions of 
 
            physical therapist Dobler and Dr. Kratochvil, based upon the 
 
            conditionally valid functional capacity assessment, were 
 
            both subjective and self-imposed (Ex. 28, pp. 3 & 4).  In 
 
            addition, he stated that claimant's job seeking efforts had 
 
            been only fair to poor (Ex. 28, p. 5).  Newman's report and 
 
            various other Heartland reports support the fact that 
 
            claimant did not send out resumes to all of the job leads 
 
            furnished to her; she frequently did not send out a resume 
 
            until two months after she received the job lead; claimant 
 
            failed to follow-up the resumes with a telephone call 
 
            requesting an interview.  He said her reasons included the 
 
            inaffordability of making telephone calls, sending resumes 
 
            and driving to attend an interview.  She refused to let 
 
            Heartland send out resumes on her behalf.  She became angry 
 
            when Heartland contacted the employers to see if they had 
 
            received a resume.  Newman concluded, "This behavioral 
 
            pattern is well established and indicates, for whatever 
 
            reason, that the client is not conducting an effective job 
 
            search." (Ex. 28, p. 5; Ex. 29 & Ex. 45).  
 
            
 
                 At the hearing, Newman admitted that he was aware of 
 
            the fact that some of these so called job possibilities were 
 
            not actually hiring people but were only accepting resumes 
 
            (Tran., p. 150).  Heartland actually began contacting 
 
            claimant on behalf of the claim administrator, Sedgwick 
 
            James, on December 27, 1990 and continued to make contacts 
 
            through October 3, 1991, through various representatives 
 
            (Ex. 30-44).  
 
            
 
                 Newman agreed with Stricklett that claimant had lost 
 
            access to 75 percent of the available jobs for nurses, but 
 
            like Stricklett he could identify selective jobs as a 
 
            registered nurse that claimant could perform within her 
 
            restrictions of sedentary work and no strenuous lifting or 
 
            repetitive bending (Ex. 28, Tran. pp. 137, 138 & 139).  
 
            Newman said claimant was earning $13.50 per hour prior to 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            the injury and that the jobs available to her now paid 
 
            between $9 and $15 per hour (Ex. 28, Tran. p. 140).  
 
            Claimant testified that she earned roughly $13 to $13.50 per 
 
            hour (Tran., p. 26).  Newman concluded "It's my opinion, 
 
            based on her work history, her experience and the type of 
 
            work that she could obtain through salvaging her career that 
 
            it's going, her industrial disability is going to hover 
 
            around ten percent." (Tran. p. 141).  
 
            
 
                 Newman disagreed with Stricklett that claimant required 
 
            aggressive on-hands hard sell placement by accompanying the 
 
            prospective employee to see prospective employers and to 
 
            work out some starting arrangement.  Newman testified that 
 
            this "... service is not a standard practice in our 
 
            profession." (Tran., p. 156).  He said most prospective 
 
            employees do not want this service.  He had never heard of 
 
            it before.  He could only visualize it in the case of a 
 
            mentally retarded person or a person with a head injury or 
 
            some other cognitive problem that would prevent them from 
 
            speaking on their own behalf (Tran. 153 & 154). 
 
            
 
                 Due to claimant's other liabilities in addition to the 
 
            aggravation of her degenerative disc disease she may well be 
 
            difficult to place because of her hypertension which is 
 
            corrected by medication, her insulin dependent diabetes, her 
 
            exogenous obesity and her emotional problems.  
 
            
 
                 Newman further testified that a 75 percent loss of 
 
            access to the labor market could equal a tremendous loss of 
 
            earning power and in some cases it might not have much 
 
            impact at all.  He estimated claimant's loss of earning 
 
            capacity at 10 percent (Tran. pp. 158 & 161).  Newman 
 
            pointed out that claimant was not totally foreclosed from 
 
            practicing her profession of being a registered nurse.  He 
 
            said she retains the ability from a qualification standpoint 
 
            to procure employment within her profession at a different 
 
            exertional level (Tran., p. 162).
 
            
 
                 Jodi Strehle began to work for Heartland Rehabilitation 
 
            in August of 1991.  She conducted a job search for claimant 
 
            in the months of August, September and October of 1991.  
 
            Strehle testified that she contacted 311 employers and found 
 
            that 53 of them hired nurses in sedentary positions.  She 
 
            forwarded these names to claimant or her attorney at the 
 
            request of the attorney.  In follow-up telephone calls she 
 
            found that 21 of these prospective employers had received 
 
            resumes from claimant and 21 of these prospective employers 
 
            had not received resumes from claimant (Tran., pp. 110 & 
 
            111).  
 
            
 
                 Strehle admitted on cross-examination that the 
 
            employers did not necessarily have jobs available for 
 
            claimant at that time nor were they hiring people at that 
 
            time, but rather these employers were simply those that did 
 
            in fact hire registered nurses for sedentary work (Tran., 
 
            pp. 122 & 123).  More than half the so called prospective 
 
            employers on Strehle's list either did not have a position 
 
            available or were not hiring at that time (Ex. 45).
 
            
 
                 Strehle testified that she is an injured employee 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            herself with a work-related cervical disc injury.  Her 
 
            employer, Methodist Hospital, continued her employment as a 
 
            utilization review nurse at the same rate of pay for two 
 
            years until she took this job with Heartland.  On her own 
 
            personal job search she found 30 to 40 employers who would 
 
            hire a nurse for a sedentary position, she had seven or 
 
            eight interviews which resulted in four job opportunities 
 
            that were all sedentary in nature.  She decided to take the 
 
            one with Heartland (Tran., pp. 115-117).  Strehle admitted 
 
            that it was difficult for her to find a sedentary position 
 
            for a registered nurse when she made her job search (Tran., 
 
            pp. 128 & 129).
 
            
 
                 Claimant's industrial disability is increased by the 
 
            fact that this injury occurred as she approached the peak 
 
            years of her earnings career.  Claimant was 39 years old at 
 
            the time of the injury and 41 years old at the time of the 
 
            hearing (Tran., pp. 19 & 28).  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (1979).  Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981). McCoy v. Donaldson Company, 
 
            Inc., file numbers 782670 & 805200 (App. Dec. 1989).
 
            
 
                 Claimant is capable of retraining or additional 
 
            training.  She began nursing in 1972, as a nurse aid.  She 
 
            started community college in 1983 and worked to become 
 
            qualified as a licensed practical nurse (LPN) by 1985.  She 
 
            received her associate degree from community college and 
 
            passed the registered nurse licensing examination in 1988.  
 
            In addition, claimant has taken several courses toward the 
 
            goal of receiving a bachelor of science in nursing (BSN).  
 
            Thus, claimant is intelligent and is willing to study to 
 
            achieve her goals in order to be employable.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).  
 
            
 
                 Both Newman and Stricklett, however, testified that 
 
            there should be positions available in claimant's chosen 
 
            career field of nursing of a sedentary nature without the 
 
            necessity of engaging in additional formal education or 
 
            training.  Stricklett acknowledged that finding sedentary 
 
            employment for a nurse is difficult.  At the same time, 
 
            claimant has not exhibited a determined effort to find 
 
            employment.  Newman accurately described her job search as 
 
            ineffective.  Since claimant has not made a serious effort 
 
            to find and maintain employment it is difficult to assess 
 
            accurately the true amount of industrial disability which 
 
            she has sustained.  Schofield v. Iowa Beef Processors, Inc., 
 
            II Iowa Industrial Commissioner Report 334, 336 (1981).  
 
            
 
                 When claimant returned to work on a temporary part-time 
 
            basis in March of 1991, her immediate supervisor, Susan 
 
            Lorkovic made accommodations for claimant according to 
 
            Jeanette Obal, Heartland's representative (Ex. 32, Ex. 33, 
 
            p. 2).  According to Obal, Lorkovic reported on March 20, 
 
            1991, that claimant was tolerating her return to work well 
 
            (Ex. 35).  Nevertheless, claimant subjectively determined 
 
            that she was unable to do the job and Dr. Kratochvil took 
 
            her back off work again on April 1, 1991, until he 
 
            determined that she had attained maximum medical  
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            improvement on June 27, 1991.  
 
            
 
                 Newman correctly determined that claimant's inability 
 
            to work is subjective and self-imposed.  Nevertheless, 
 
            Dobler determined that as a result of his physical capacity 
 
            assessment that claimant should be limited to sedentary 
 
            work.  Furthermore, Dr. Kratochvil accepted claimant's 
 
            subjective and self-imposed limitations as true.  He fully 
 
            subscribed, on several occasions, to the physical capacity 
 
            assessment that claimant should be limited to sedentary work 
 
            and avoid strenuous lifting and repetitive bending and that 
 
            these restrictions were caused by this injury.  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 
 
            Iowa 375, 101 N.W.2d 167 (1960).  It should also be noted at 
 
            this point that Dr. Kratochvil was the insurance carriers 
 
            choice of physician and that they removed claimant's care 
 
            from Dr. Fruin to Dr. Kratochvil in exercising their right 
 
            to chose the care pursuant to Iowa Code section 85.27.  
 
            
 
                 After claimant was unable to resume clinical or general 
 
            nursing duties in April of 1991, employer refused to rehire 
 
            claimant unless she was released to return to work without 
 
            any restrictions.  Claimant testified that she tried several 
 
            times to go back to work at Mercy Hospital but that they 
 
            were unwilling to accept her for employment that fell within 
 
            her restrictions.  The evidence shows that employer does 
 
            have some sedentary jobs but none that have been available 
 
            to claimant.  Employer in this case is a large corporation 
 
            which employs many nurses in many different types of jobs in 
 
            its work force.  Under such circumstances, the refusal to 
 
            reemploy claimant or to find any work for her within her 
 
            restrictions is strong evidence of a severe lack of 
 
            employability.  2 Larson Workers' Compensation Law section 
 
            57.61.  Claimant acknowledged that it was not only Mercy 
 
            Hospital but other hospitals did not want to hire her within 
 
            her restrictions (Tran., p. 80).  
 
            
 
                 At the same time claimant's failure to make a serious 
 
            job search tends to reduce the amount of industrial 
 
            disability.  An employee seeking workers' compensation would 
 
            do well to make a diligent attempt to find employment.  Hild 
 
            v. Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
            (Appeal Decision 1981).   Tuberty v. Harold Dicky Transport, 
 
            Inc. file number 798936 (February 29, 1992).  Beintema v. 
 
            Sioux City Engineering Co., II Iowa Industrial Commissioner 
 
            Report 24 (1981); Cory v. Northwestern States Portland 
 
            Cement Company, Thirty-third Biennial Report of the 
 
            Industrial Commissioner 104 (1976).  
 
            
 
                 Employers are responsible for the reduction in earnings 
 
            capacity caused by the injury, they are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).  
 
            
 
                 Claimant testified that she is limited to only driving 
 
            20 or 30 miles, however, Newman testified that there was no 
 
            medical evidence to support this self-imposed limitation of 
 
            claimant on her driving ability.  
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 Newman accused claimant of sabotaging her own job 
 
            search by using a cover letter on her resume which 
 
            emphasized the fact that she had a work-related injury, a 5 
 
            percent impairment and was still recovering from the injury.  
 
            Newman recanted when he learned that a commercial firm in 
 
            Council Bluffs had prepared this letter for claimant and 
 
            that she had not done so herself.  
 
            
 
                 The hard fact is, however, that claimant is foreclosed 
 
            from what is described as clinical or general nursing duties 
 
            which is the most common type of employment available to 
 
            registered nurses.  She is now restricted to selective, 
 
            hybrid types of a sedentary nursing developed only in recent 
 
            times and according to Newman are not even listed in The 
 
            Dictionary of Occupational Titles (Tran. p. 138).  Strehle 
 
            testified that her employer found sedentary employment for 
 
            her of a temporary nature for two years at the same pay 
 
            until she decided to change jobs.  This employer was unable 
 
            to perform the same accommodation for this claimant.  
 
            Strehle also acknowledged that she found it difficult to 
 
            find a sedentary job.  Strehle also demonstrated more 
 
            diligent search for sedentary employment than claimant when 
 
            she wanted to find it.
 
            
 
                 Claimant sat for approximately four hours during the 
 
            hearing and did not demonstrate any back discomfort even 
 
            though she testified that she could only sit for 
 
            approximately 30 minutes.  She did, however, testify that 
 
            this much sitting was difficult for her (Trans., p. 82).
 
            
 
                 Wherefore, based upon the following factors (1) that 
 
            claimant sustained an aggravation of her degenerative disc 
 
            disease by a sprain/strain to her lumbar spine, (2) that 
 
            claimant experienced a long and difficult period of 
 
            recovery, (3) that the treating physician, Dr. Kratochvil, 
 
            determined that claimant had sustained a 5 percent permanent 
 
            physical and functional impairment to the body as a whole, 
 
            (4) that Dr. Kratochvil determined that claimant was 
 
            restricted to sedentary employment for the indefinite future 
 
            and is restricted from strenuous lifting or repetitive 
 
            bending, (5) that claimant is approximately 40 years of age 
 
            and near the peak point in her earnings capacity, (6) that 
 
            claimant is retrainable but there should be no need for 
 
            retraining due to her already specialized training as a 
 
            nurse and her pursuit of courses to obtain a BSN in nursing, 
 
            (7) that employer initially attempted to accommodate the 
 
            injury but claimant insisted that she was not able to 
 
            perform the job due to her own subjective and self-imposed 
 
            limitations, (8) the employer then determined that claimant 
 
            should not return to work unless claimant had a full release 
 
            for clinical nursing duty and that employer was not able to 
 
            find sedentary work for claimant, (9) that claimant's 
 
            functional capacity assessment was only conditionally valid 
 
            and based upon subjective opinion, but nevertheless, Dobler, 
 
            the physical therapist, and Dr. Kratochvil, the treating 
 
            orthopedic surgeon, concurred that claimant was restricted 
 
            to performing only sedentary work for the indefinite future, 
 
            (10) that claimant usually weighs between 295 and 330 pounds 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            and has suffered from exogenous obesity for several years, 
 
            (11) that claimant suffers from hypertension which is 
 
            regulated by medication and is also an insulin dependent 
 
            diabetic, (12) that claimant has experienced a number of 
 
            emotional problems both before and after this injury, (13) 
 
            that claimant did not actively and diligently search for 
 
            work of a sedentary nature after Dr. Kratochvil determined 
 
            that she had attained maximum medical improvement on June 
 
            27, 1991,  (14) that claimant is foreclosed from 
 
            approximately 75 percent of the jobs available to registered 
 
            nurses, (15) based upon all the evidence of record in this 
 
            case, (16) based upon all the factors used to determine 
 
            industrial disability Christensen v. Hagen, Inc., vol. I, 
 
            no. 3, State of Iowa Industrial Commissioner Decisions 529 
 
            (App. Dec. March 26, 1985); and Peterson v. Truck Haven 
 
            Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial 
 
            Commissioner Decisions 654, 658 (App. Dec. February 28, 
 
            1985) and (17) applying agency expertise [Iowa 
 
            Administrative Procedure Act 17 A.14(5)] it is determined 
 
            that claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and is entitled to 150 
 
            weeks of permanent partial disability benefits.
 
            
 
                                     credits
 
            
 
                 Defendants are entitled to a credit for any 
 
            compensation they paid to claimant when she returned to work 
 
            on a temporary basis part-time in March of 1991.  However, 
 
            this credit will have to be worked out by the parties 
 
            between themselves for the reason that it was not designated 
 
            as an issue to be determined by this decision and there is 
 
            not sufficient evidence in the record at this time to make 
 
            that determination.  The evidence is also insufficient to 
 
            calculate temporary partial disability benefits pursuant to 
 
            Iowa Code section 85.33(2) through 85.33(5).  
 
            
 
                                     medical
 
            
 
                 Claimant contended that the work hardening/physical 
 
            therapy facility in Council Bluffs had not been paid at the 
 
            time of the hearing (Tran., pp. 65-67).  Exhibit 49 is an 
 
            itemized statement of mileage expense (Tran., pp. 65-67).
 
            
 
                 Medical is not one of the designated issues to be 
 
            determined by this decision.  Moreover, it is noted on the 
 
            prehearing report signed by both parties that all requested 
 
            medical benefits have been or will be paid by defendants.  
 
            Therefore, defendants should keep this commitment.
 
            
 
                                 penalty benefits
 
            
 
                 It is determined that claimant is entitled to 25 weeks 
 
            of penalty benefits at the rate of $178.55 per week which is 
 
            50 percent of her normal rate of compensation (50 percent of 
 
            357.10 = $178.55). 
 
            
 
                 Iowa Code section 86.13 (4) provides for penalty 
 
            benefits up to 50 percent for the delay in commencement or 
 
            the termination of benefits without reasonable or probable 
 
            cause or excuse.
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
                 Defendants knew in April of 1991 that claimant had a 
 
            very serious disability when employer, who employs numerous 
 
            nurses, had absolutely no employment for claimant within her 
 
            restrictions. 
 
            
 
                 In this case Dobler, who was hired and paid by 
 
            defendant, determined that claimant could only perform 
 
            sedentary work on May 17, 1991 (Ex. 24).
 
            
 
                 On June 27, 1991, Dr. Kratochvil defendant's choice of 
 
            physician, determined that claimant had attained maximum 
 
            medical improvement and had sustained a 5 percent permanent 
 
            impairment of the whole person as a result of this injury 
 
            and was still incapable of returning to work (Ex. 8).  
 
            Stricklett, claimant's vocational rehabilitation witness, 
 
            testified that claimant was limited to sedentary work.  
 
            Newman and Strehle, defendants' vocational rehabilitation 
 
            witnesses, testified that claimant was limited to sedentary 
 
            employment.  They learned that in May of 1991 from Dobler.  
 
            The reports of Obal and Johnson, defendant's vocational 
 
            rehabilitation specialists indicated that claimant was 
 
            limited to sedentary employment after June 5, 1991 (Ex. 38).
 
            
 
                 Thus, defendants knew that claimant not only had a 5 
 
            percent permanent physical and functional impairment rating 
 
            but also knew that claimant was greatly restricted from 
 
            returning to the general or clinical nursing labor market 
 
            and was restricted to the narrow, hybrid and specialized 
 
            limited fields of sedentary nursing ever since May 17, 1991.  
 
            The defendant insurance carrier either knew, or should have 
 
            known, as an ordinary reasonable and prudent workers' 
 
            compensation insurer that claimant would receive an award 
 
            greater than the 5 percent permanent physical/functional 
 
            impairment rating. 
 
            
 
                 On October 15, 1991, Stricklett determined (1) that 
 
            claimant had a 75 percent loss of access to the employment 
 
            market, (2) had sustained a 20 to 25 percent loss of earning 
 
            capacity and required aggressive hands-on selective job 
 
            placement (Ex. 27).  Newman testified at the hearing that he 
 
            agreed with Stricklett that claimant had lost 75 percent 
 
            access to the employment market as a registered nurse but he 
 
            indicated that her loss of earning capacity was 10 percent.  
 
            The testimony of Newman has been available to defendants as 
 
            Newman became a partner of Heartland on June 3, 1991 (Tran., 
 
            p. 41).  Thus, defendants not only did not pay a compromise 
 
            amount of industrial disability between the percentages of 
 
            Stricklett and Newman but did not even pay the bare minimum 
 
            10 percent assessed by their own professional witness, 
 
            Newman.
 
            
 
                 According to the arguments of defendants counsel they 
 
            felt they owned claimant approximately 30 weeks of healing 
 
            period benefits from October of 1990 to sometime in May 1991 
 
            and an additional 5 percent permanent partial disability 
 
            which would constitute another 25 weeks.  This total is 
 
            approximately 55 weeks.  The parties stipulated on the 
 
            prehearing report that defendants had paid claimant 53 weeks 
 
            of workers' compensation benefits at the rate of $357.10 per 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            week prior to hearing.  Therefore, it is obvious, that 
 
            defendants paid claimant no more than the 5 percent 
 
            permanent impairment rating, whereas at bare minimum, as an 
 
            ordinary reasonable and prudent workers' compensation 
 
            insurance carrier, it should have paid claimant on a basis 
 
            of a 10 percent industrial disability simply to protect 
 
            themselves from an award of penalty benefits, based on the 
 
            opinion of their own hired evaluator.
 
            
 
                 Furthermore, it could be argued persuasively that they 
 
            should have paid claimant even more than 10 percent when it 
 
            is considered that claimant was eventually awarded 30 
 
            percent.  
 
            
 
                 Wherefore, it is determined that defendants cannot 
 
            conscientiously and justifiably state that there was a 
 
            legitimate dispute on either causation or the extent of 
 
            impairment of at least 10 percent on June 27, 1991.  Juste 
 
            v. HyGrade Food Products Corp., IV Iowa Industrial 
 
            Commissioner Reports, 190 (App. Dec. 1984).  
 
            
 
                 Likewise, and in more recent times it has been 
 
            determined that penalty benefits are not due where 
 
            defendants assert a claim that is fairly debatable.  Seydel 
 
            v. University of Iowa Physical Plant, file number 818849 
 
            (App. Dec. 1989); Stanley v. Wilson Foods, file number 
 
            753405 (App. Dec. 1990); Heidt v. Lynn Photo Company, file 
 
            number 916737 (App. Dec. 1992);  Place v. Giest Construction 
 
            Company, file numbers 931185, 891539 (1992); Shelton v. 
 
            McDonalds Hamburgers, file number 976855 (1992); Lloyd v. 
 
            Western Home, file number 890207 (App. Dec. 1991).  
 
            
 
                 The fairly debatable standard which was announced in 
 
            the tort case of Dolan v. Aid Insurance Company, 431 N.W.2d 
 
            790 (Iowa 1989) appears to have been adopted for workers' 
 
            compensation cases in Dodd v. Oscar Mayer Foods Corp., file 
 
            number 724378 (1989); Throgmartin v. Precision Pulley Inc., 
 
            file number 885869 (On Appeal) (1990); Collins v. Hawkeye 
 
            Moving & Storage, file number 873651 (1990).  
 
            
 
                 Where the employer failed to pay permanent partial 
 
            disability in accordance with the rating of its own chosen 
 
            physician (the lowest rating in the record), the failure to 
 
            pay was determined to be unreasonable and a 50 percent 
 
            penalty was assessed.  Stanley v. Wilson Foods Corp., file 
 
            number 753405 (1990). Likewise in this case, when claimant's 
 
            evaluator determines a 20 to 25 percent loss of earnings 
 
            capacity and defendants evaluator at hearing testifies to a 
 
            10 percent loss of earnings capacity it must be determined 
 
            that defendants unreasonably failed to pay at least an 
 
            additional 5 percent or 25 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to 25 weeks of penalty benefits pursuant to Iowa Code 
 
            section 86.13(4) based upon a 50 percent penalty of the 
 
            stipulated rate of $357.10 in the amount of $178.55 ($357.10 
 
            x 50 % = $178.55) in the total amount of $4,463.75.
 
            
 
                 The Supreme Court of Iowa has recently stated that it 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            is even interested in going beyond Iowa Code section 
 
            86.13(4) to punish employers who wrongfully deny needy 
 
            injured workers their rightful entitlement to workers' 
 
            compensation benefits.  Boylan v. American Motors Insurance 
 
            Company, No. 250/91-1520, Iowa Supreme Court filed September 
 
            23, 1992.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury to the lumbar spine 
 
            of an aggravation of her preexisting degenerative disc 
 
            disease caused by a sprain/strain that occurred at work on 
 
            October 17, 1990, when she attempted to rescue a patient 
 
            from falling out of bed.  Iowa Code section 85.3(1).  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 That the injury was the cause of both temporary and 
 
            permanent disability based upon the clear and unequivocal 
 
            testimony of claimant's primary treating orthopedic surgeon 
 
            which was selected by employer and insurance carrier.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945).  
 
            
 
                 That claimant is entitled to a total of 45.429 weeks of 
 
            healing period benefits based upon two separate periods of 
 
            healing (1) October 19, 1990 through June 27, 1991, which is 
 
            36 weeks and (2) March 4, 1992 through May 8, 1992, which is 
 
            9.429 weeks.  These two periods total 45.429 weeks of 
 
            healing period benefits.  Iowa Code section 85.34(1).
 
            
 
                 That claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and is entitled to 150 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).  
 
            
 
                 That claimant is entitled to penalty benefits for 25 
 
            weeks at the rate of $178.55 in the total amount of 
 
            $4,463.75.  Iowa Code section 86.13(4).
 
            
 
                                      order
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty-five point four 
 
            two nine (45.429) weeks of healing period benefits at the 
 
            rate of three hundred fifty-seven and 10/100 dollars 
 
            ($357.10) per week  in the total amount of sixteen thousand 
 
            two hundred twenty-two and 70/100 dollars ($16,222.70) 
 
            commencing on October 19, 1990, but interrupted for the 
 
            period between June 28, 1991 and March 4, 1992 when claimant 
 
            is entitled to permanent partial disability benefits because 
 
            claimant had attained maximum medical improvement and failed 
 
            to demonstrate any improvement during that period of time 
 
            but commencing again on March 4, 1992 through May 8, 1992 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            [as stipulated to by the parties (Tran., p. 15)] when 
 
            claimant participated in physical therapy/work hardening and 
 
            there is evidence that her condition improved again.  Iowa 
 
            Code section 85.34(1).
 
            
 
                 That defendants pay to claimant one hundred and fifty 
 
            (150) weeks of permanent partial disability benefits at the 
 
            rate of three hundred fifty-seven and 10/100 dollars 
 
            ($357.10) per week in the total amount of fifty-three 
 
            thousand five hundred sixty-five dollars ($53,565) 
 
            commencing on June 28, 1991 but interrupted by the period 
 
            that claimant received additional healing period benefits 
 
            between March 4, 1992 and May 8, 1992.
 
            
 
                 That defendants are entitled to a credit for 
 
            fifty-three (53) weeks of workers' compensation benefits 
 
            paid to claimant prior to hearing in the amount of three 
 
            hundred fifty-seven and 10/100 dollars ($357.10) per week in 
 
            the total amount of eighteen thousand nine hundred 
 
            twenty-six and 30/100 dollars ($18,926.30) as stipulated to 
 
            by the parties in the prehearing report.  
 
            
 
                 Defendants are also entitled to a credit for wages 
 
            earned during the period of temporary part-time trial return 
 
            to work in March of 1991.  
 
            
 
                 That although medical benefits were not an issue to be 
 
            determined by this decision claimant has asserted a claim 
 
            for the work hardening/physical therapy and mileage to and 
 
            from that training and the parties specified in the 
 
            prehearing report that defendants either had paid or would 
 
            pay all requested medical benefits.  These items therefore 
 
            should be paid by defendants.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30 on unpaid weekly benefits.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That defendants pay claimant twenty-five (25) weeks of 
 
            penalty benefits in the amount of one hundred seventy-eight 
 
            and 55/100 dollars ($178.55) per week based upon a 50 
 
            percent (50%) penalty in the total amount of four thousand 
 
            four hundred sixty-three and 75/00 dollars ($4,463.75).
 
            
 
                 Interest will not accrue on medical benefits or penalty 
 
            benefits.  Klein v. Furnace Electric Company, 384 N.W.2d 370 
 
            (Iowa 1986), until after the date of this decision.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Iowa Code sections 86.19(1) 86.40 and rule 343 
 
            IAC 4.33.  That claimant is specifically entitled to the 
 
            filing fee in the amount of sixty-five dollars ($65) and the 
 
            report of Dr. Fernandez in the amount of one hundred 
 
            twenty-five dollars ($125) as shown on Exhibit 50.  The 
 
            actual payment of these costs was not disputed at paragraph 
 
            D on the prehearing report.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            
 
                 That defendants file all delinquent forms 2, 2A and 2B 
 
            which were not filed with this agency prior to hearing 
 
            pursuant to rule 343 IAC 3.1(2) through (4), within thirty 
 
            (30) days of the signing and filing of this decision.  
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            
 
            Mr. Jacob J. Peters
 
            Attorney at Law
 
            233 Pearl Street
 
            P.O. Box 1078
 
            Council Bluffs, IA  51502-1078
 
            
 
            Mr. Melvin Hansen
 
            Richard D. Crotty
 
            Attorneys at Law
 
            800 Exchange Building
 
            1905 Harney Street
 
            Omaha, NE  68102
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51106, 51108.50, 51401, 51402.20, 
 
                      51404.30
 
                      1802, 1803, 1807, 2700
 
                      4000.2
 
                      Filed January  , 1993
 
                      Walter R. McManus, Jr.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN BLODGETT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 965009
 
            CATHOLIC HEALTH CORPORATION,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            RELIANCE NATIONAL INSURANCE   :
 
             COMPANY, Represented by      :
 
                                          :
 
            SEDGEWICK JAMES, Administrator:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106, 51108.50, 51401, 51402.20, 51402.30
 
            All of the evidence, medical and non-medical, established 
 
            injury.  Nothing contradicted claimant's account of the 
 
            injury.
 
            
 
            1802, 2700 (reasonable refusal of medical care)
 
            The treating orthopedic physician established causal 
 
            connection.  His testimony was not controverted, but rather 
 
            was compatible with other physicians who treated claimant.
 
            Claimant awarded healing period from time she first missed 
 
            work until the treating physician said she attained maximum 
 
            medical improvement, even though he also said she was not 
 
            able to work after that point and remained under his care.  
 
            He determined she had attained maximum medical improvement 
 
            because she resisted the treating modalities that he 
 
            suggested of a caudal block, myelogram, MMPI and pain 
 
            management center.  
 
            Claimant's refusal of these modalities was not unreasonable 
 
            so as to terminate weekly benefits, but did give the 
 
            physician good cause for stating that in his opinion she had 
 
            attained maximum medical improvement.
 
            Claimant awarded a second period of healing when she agreed 
 
            to participate and the treating physician ordered additional 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            physical therapy/work hardening.  The doctor said this 
 
            improved her condition.
 
            
 
            1803, 1807
 
            Claimant, age 39, registered nurse, sustained a five percent 
 
            physical/functional impairment, but was foreclosed from 
 
            clinical/general duty nursing and was restricted to 
 
            sedentary nursing.  Employer could find nothing for her to 
 
            do.  Claimant's work search was very ineffective.  Claimant 
 
            awarded 30 percent industrial disability.
 
            
 
            4000.2
 
            Claimant awarded 50 percent penalty benefits.  Defendants 
 
            knew at the end of healing period that claimant was 
 
            foreclosed from general duty nursing and was limited to 
 
            sedentary nursing.  Employer had no work she could do.  The 
 
            physical capacity assessment ordered by defendant limited 
 
            her to sedentary work even before the end of healing period.  
 
            Defendants' vocational rehabilitation persons all knew 
 
            claimant was restricted to sedentary work.  
 
            Both claimant and defendants' vocational rehabilitation 
 
            consultants agreed that claimant had lost access to 75 
 
            percent of the labor market for registered nurses.  
 
            Claimants evaluator said she had a 20 percent to 25 percent 
 
            loss of earnings capacity.  Defendants' own evaluator said 
 
            claimant had a loss of 10 percent of earning capacity.  Yet, 
 
            defendants only paid claimant 5 percent industrial 
 
            disability apparently based on the physical impairment 
 
            rating.
 
            It was determined that the ordinary, reasonable and prudent 
 
            insurance carrier handling workers' compensation claims 
 
            either knew or should have known that claimant would have 
 
            been awarded a bare minimum of 10 percent industrial 
 
            disability and probably more.  Defendants penalized for 
 
            another 5 percent or 25 weeks of penalty benefits.
 
            It was held that defendants' did not have a legitimate 
 
            dispute as to the causation or extent of impairment (Juste 
 
            v. Hygrade) nor was it fairly debatable that claimant was 
 
            entitled to much more than a payment of 5 percent (Seydel v. 
 
            University of Iowa).  Defendants failed to pay the 
 
            evaluation of their own evaluator, save consider a 
 
            compromise between claimant's and defendants' evaluators.
 
            It was pointed out that the Supreme Court of Iowa has opened 
 
            new remedies against defendants who wrongfully deny injured 
 
            workers their rightful entitlement to workers' compensation 
 
            benefits.  Boylan v. American Motors Insurance Company.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            DEANA WILLIAMS,                 :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :    File Nos. 965106 & 
 
					    :              938333
 
            DEPARTMENT OF NATURAL RESOURCES,:
 
                                            :      A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            STATE OF IOWA,                  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendant.                 :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Deanna Williams, against her employer, 
 
            Department of Natural Resources and the State of Iowa, 
 
            defendant.  The case was heard on October 31, 1991, in Des 
 
            Moines, Iowa at the office of the Industrial Commissioner.  
 
            The record consists of the testimony of claimant.  The 
 
            record also consists of the testimony of Irene Ray, 
 
            claimant's supervisor.  Additionally, the record consists of 
 
            claimant's exhibits 1 and 2 and defendant's exhibits A 
 
            through E.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            sustained an injury on September 14, 1990, which arose out 
 
            of and in the course of her employment; 2) whether the 
 
            injury of September 14, 1990, is a cause of temporary or 
 
            permanent disability; 3) whether the injury of December 26, 
 
            1989, is a cause of permanent disability; 4) whether 
 
            claimant is entitled to medical benefits pursuant to section 
 
            85.27; and, 5) whether claimant is entitled to penalty 
 
            benefits pursuant to section 86.13(4).
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 
 
            
 
                 Claimant is 32 years old.  She commenced her employment 
 
            on June 20, 1989.  Claimant was hired as a Clerk 3 with the 
 
            Department of Natural Resources.  Because of the governor's 
 
            lay-off program, claimant was terminated on August 9, 1991.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Since that date claimant has been receiving unemployment 
 
            compensation.
 
            
 
                 Claimant's duties were varied while she was employed at 
 
            the Department of Natural Resources.  She filed documents, 
 
            prepared microfilm, answered the phone, serviced the public 
 
            at a counter, moved and stacked file boxes, did some typing, 
 
            mailed rule requests, sorted files and organized documents.
 
            
 
                 On December 26, 1989, a file divider weighing 
 
            approximately five pounds fell diagonally across claimant's 
 
            right wrist.  Claimant was taken to the emergency room at 
 
            Des Moines General Hospital for medical attention.  A splint 
 
            and medications were prescribed for claimant.  Claimant 
 
            continued to experience pain.  Eventually claimant received 
 
            a stellate ganglion block for reflex sympathetic dystrophy 
 
            of the right arm secondary to trauma.  (Exhibit B, page 6)  
 
            A second and a third stellate ganglion block were performed 
 
            several days later.  Claimant participated in physical 
 
            therapy as well as occupational therapy per Mark B. 
 
            Kirkwood, D.O.  Dr. Kirkland diagnosed claimant as having 
 
            neuroproxia/contusion of the right median nerve.
 
            
 
                 Claimant returned to work on February 15, 1990, for 
 
            half days.  After a period of time claimant returned to her 
 
            full time duties.  In his office notes of March 12, 1990, 
 
            Dr. Kirkland wrote:
 
            
 
                    Deanna [sic] returns today and she really has 
 
                 no complaints.  She states occasionally her 
 
                 forearm will burn on her but most likely she feels 
 
                 this is secondary to weakness.  She has been 
 
                 working her normal job without any restrictions.
 
               On physical examination today there is no 
 
            temperature change compared to the contra-lateral 
 
            hand and forearm.  She has good grip strength 
 
            bilaterally.  She has full range of motion of her 
 
            right wrist.
 
               At this time I do not need to see Deanna [sic] 
 
            back unless she has problems.  I feel fortunate we 
 
            were able to correct this malady on time.  If she 
 
            has any problems, she should return to see us.
 
            
 
            (Ex. E, p. 32)
 
            
 
                 Claimant had no problems with her right wrist for a 
 
            period of time.  She returned to her full time duties which 
 
            were basically the same duties which she had before December 
 
            26, 1989.
 
            
 
                 After her return to work, claimant again experienced 
 
            difficulties with her arm and neck.  She sought chiropractic 
 
            care from Daniel J. Hannan, D.C.  Dr. Hannan diagnosed 
 
            claimant's condition as "cervical thoracic strain that is 
 
            aggravated by physical or emotional stress."
 
            
 
                 Dr. Hannan, after attempting treatment, referred 
 
            claimant to Dr. Kirkland.  On October 10, 1990, claimant saw 
 
            Dr. Kirkland.  He wrote in his office notes for that day:
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    Deana returns today complaining of a numbness, 
 
                 tingling feeling in the volar radial aspect of her 
 
                 right upper extremity and it is mainly the 
 
                 forearm.  She states when she touches this area it 
 
                 does give her tingling and it goes into the thumb.  
 
                 She has recently been seen by a chiropractor and 
 
                 has been followed almost daily.  She wanted to 
 
                 come back here because she knew that I had 
 
                 experienced what was wrong with her in the past.
 
               On physical exam her right hand is somewhat 
 
            colder than the left, but this is not like it was 
 
            before.  She does not have  alot [sic] of pain to 
 
            palpation of her right upper extremity.  With 
 
            rubbing her volar radial aspect this does give her 
 
            numbness and tingling.  There is no numbness and 
 
            tingling with palpating the dorsal radial aspect 
 
            where the sensory branch of the radial nerve is.  
 
            She has a negative tinels [sic] at the wrist.  She 
 
            does have general uncomfortableness with moving 
 
            her right elbow, but no specific complaints.  Her 
 
            range of motion in her right wrist is full.
 
               Impression:  Tendonitis/overuse syndrome of the 
 
            right forearm....
 
            
 
            (Ex. l, p. 34)
 
            
 
                 Claimant's condition did not improve.  As a result 
 
            surgery was performed on November 20, 1990.  A carpal tunnel 
 
            release on the right wrist was performed.  Dr. Kirkland, in 
 
            his surgical notes, wrote:
 
            
 
                 Findings:  The patient did have narrowing of the 
 
                 median nerve as it passed deep to the transverse 
 
                 carpal ligament.  There was some moderate 
 
                 hypertrophy of the teno synovium.
 
            
 
                 As of January 8, 1991, claimant was released to return 
 
            to work.  Dr. Kirkland imposed the following restrictions:
 
            
 
                 At this time, however, I feel that she is doing 
 
                 well enough that we could send her back to work.  
 
                 We will allow her to return to work tomorrow.  She 
 
                 will have a twenty-five-pound lifting limitation 
 
                 at this time.  This will be for a period of two 
 
                 weeks.  After two weeks, she is allowed to 
 
                 progress to her full duty.  If she has any 
 
                 problems, she is to return to see me.
 
            
 
            (Ex l, p. 37)
 
            
 
                 Dr. Kirkland, on February 21, 1991, opined the 
 
            following relative to claimant's condition:
 
            
 
                 I last saw Ms. Deana Williams on January 07, 1991.  
 
                 I will now answer your questions in the same order 
 
                 you asked them of me.
 
            
 
                 1) I do agree that Ms. Williams' carpal tunnel 
 
                 syndrome was caused by her employment secondary to 
 
                 her repetitive use of her hands and fingers.  She 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 does work in the Department of Natural Resources.
 
            
 
                 2) I do feel that she does have four (4%) percent 
 
                 permanent partial impairment to her right hand.
 
            
 
                 3) As far as future restrictions placed on Ms. 
 
                 Williams' activities to prevent risk of re-injury, 
 
                 these should avoid repetitive type of motions, 
 
                 repetitive heavuy [sic] lifting, and pulling.
 
            
 
                 If you have any other specific questions, please 
 
                 feel free to contact me.
 
            
 
            (Ex. l, p. 28)
 
            
 
                 Claimant returned to the same duties she had previous 
 
            to her surgery.  In August of 1991, claimant was terminated 
 
            due to the governor's mandatory lay-off.  As of the date of 
 
            the hearing, claimant was not employed.
 
            
 
                                conclusions of law
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
g's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 With respect to file number 938333, claimant has not 
 
            proven that she has sustained a permanent partial disability 
 
            to her right hand as a result of her injury on December 26, 
 
            1989.  Claimant was released to return to work on February 
 
            15, 1990, with temporary restrictions for two weeks.  After 
 
            the two week period, claimant was released to full duty with 
 
            no restrictions whatsoever.
 
            
 
                 Dr. Kirkland opined that after claimant had returned to 
 
            full duty, she had full range of motion of the right wrist.  
 
            Claimant also had good grip strength, with no complaints, 
 
            and no temperature changes in her wrist.  Dr. Kirkland 
 
            provided a full release.  Claimant sustained no permanent 
 
            partial disability.
 
            
 
                 Claimant did sustain a temporary total disability with 
 
            respect to file number 938333.  Pursuant to section 85.33, 
 
            claimant was temporarily and totally disabled from December 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            26, 1989 through February 15, 1990.  Claimant was entitled 
 
            to 7.429 weeks of benefits at the stipulated rate of $181.76 
 
            per week.
 
            
 
                 With respect to file number 965106, claimant has proven 
 
            by a preponderance of the evidence that she has sustained an 
 
            injury which arose out of and in the course of her 
 
            employment.  Claimant performed various activities once she 
 
            returned to work on February 15, 1990.  All of the various 
 
            activities required the use of claimant's right hand and 
 
            wrist.  For example, claimant was required to type, she was 
 
            required to pull staples from papers, to flip pages, carry 
 
            and lift boxes and lift pieces of equipment.  All of the 
 
            activities were repetitive in nature.  Claimant's treating 
 
            neurosurgeon related claimant's hand condition to her 
 
            activities at work.  Dr. Kirkland's opinion is accorded much 
 
            weight.  He had been treating claimant's condition and had 
 
            ample time to observe claimant.  Dr. Kirkland is an 
 
            orthopedic surgeon.  His expertise is recognized.  Claimant 
 
            has sustained her burden of proof.  She has sustained an 
 
            injury which arose out of and in the course of her 
 
            employment.
 
            
 
                 Claimant has proven that she has sustained a permanent 
 
            partial disability.  Again, the opinion of Dr. Kirkland is 
 
            given greater weight.  He opined that claimant had a four 
 
            percent impairment to her right hand.  The parties 
 
            stipulated that if defendant was held liable, then claimant 
 
            was entitled to six weeks of permanent partial disability 
 
            benefits to the right hand at the stipulated rate of $189.97 
 
            per week.  It is determined that claimant is entitled to the 
 
            same.
 
            
 
                 The next issue to determine is the extent of healing 
 
            period benefits to which claimant is entitled.  Section 
 
            85.34(1) provides that healing period benefits are payable 
 
            to an injured worker who has suffered permanent partial 
 
            disability until (1) the worker has returned to work; (2) 
 
            the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            App. 1981).  Healing period benefits can be interrupted or 
 
            intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 In the case at hand, claimant was off work because of 
 
            her work injury from September 17, 1990 to January 7, 1991.  
 
            As of January 8, 1991, claimant was released to return to 
 
            work with restrictions.  Claimant is entitled to 16.143 
 
            weeks of healing period benefits at the stipulated rate of 
 
            $189.97.
 
            
 
                 The next issue to determine is whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27.  The 
 
            employer shall furnish reasonable surgical, medical, dental, 
 
            osteopathic, chiropractic, podiatric, physical 
 
            rehabilitation, nursing, ambulance and hospital services and 
 
            supplies for all conditions compensable under the workers' 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            compensation law.  The employer shall also allow reasonable 
 
            and necessary transportation expenses incurred for those 
 
            services.  The employer has the right to choose the provider 
 
            of care, except where the employer has denied liability for 
 
            the injury.  Section 85.27.; Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78 (Review decision 1975).  Claimant has the 
 
            burden of proving that the fees charged for such services 
 
            are reasonable.  Anderson v. High Rise Constr. Specialists, 
 
            Inc., file number 850096 (Appeal Decision 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa App. 1983).
 
            
 
                 In this case, defendant denied claimant's claim.  
 
            Therefore, defendant did not have the right to select 
 
            claimant's medical care.  Defendant is liable for:
 
            
 
                      Mark Kirkland, D.O.                $  970.00
 
                      Steven Adelman, D.O.                  330.00
 
                      Des Moines Bone & Joint                90.00
 
                      Surgery Center of Des Moines          835.00
 
                      M. S. Igbal                           170.00
 
                                               Total     $2,395.00
 
            
 
                 Defendant is not liable for the charges of Daniel J. 
 
            Hannan, D.C.  His medical charges relate to cervical strain, 
 
            headaches, muscle spasms, thoracic strain that is aggravated 
 
            by physical or emotional stress and brachial plexus 
 
            entrapment of the right upper extremity.  There does not 
 
            appear to be treatment rendered for carpal tunnel syndrome.  
 
            His charges are not causally related to claimant's carpal 
 
            tunnel syndrome.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to penalty benefits pursuant to section 86.13.  
 
            Section 86.13 permits an award of up to 50 percent of the 
 
            amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonable in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., file number 753405 (Appeal 
 
            Decision, August 23, 1990); Seydel v. Univ. of Iowa Physical 
 
            Plant, file number 818849 (Appeal Decision, November 1, 
 
            1989).
 
            
 
                 In this instance, claimant is not entitled to penalty 
 
            benefits pursuant to section 86.13.  At the time of 
 
            claimant's second injury, she reported to her supervisors 
 
            that she had problems with her back and neck.  At that point 
 
            in time, it was reasonable for the supervisors to take 
 
            claimant at her word.  There was no reason for the 
 
            supervisors to believe the injury was work related.  The 
 
            supervisors acted reasonably in denying the claim.  
 
            Therefore, claimant is not entitled to benefits under the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            final paragraph of section 86.13.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay unto claimant seven point 
 
            four-two-nine (7.429) weeks of temporary total disability 
 
            benefits for file number 938333 at the stipulated rate of 
 
            one hundred eighty-one and 76/l00 dollars ($181.76) 
 
            commencing on December 26, 1989.
 
            
 
                 Defendant is to pay unto claimant six weeks of 
 
            permanent partial disability benefits for file number 965106 
 
            at the stipulated rate of one hundred eighty-nine and 97/l00 
 
            dollars ($189.97) commencing on January 8, 1991.
 
            
 
                 Defendant is to also pay unto claimant sixteen point 
 
            one-four-three (16.143) weeks of healing period benefits for 
 
            file number 965106 which represents the period from 
 
            September 17, 1990 through January 7, 1991, at the 
 
            stipulated rate of one hundred eighty-nine and 97/l00 
 
            dollars ($189.97).
 
            
 
                 Defendant is also liable for two thousand three hundred 
 
            ninety-five and no/l00 dollars ($2,395.00) in medical 
 
            expenses pursuant to section 85.27, Iowa Code.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendant shall take credit for benefits previously 
 
            paid claimant.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl, III
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1800; 1801; 1802; 1803.1
 
                           Filed November 25, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            DEANA WILLIAMS,                 :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :    File Nos. 965106 & 
 
					    :	            938333
 
            DEPARTMENT OF NATURAL RESOURCES,:
 
                                            :      A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            STATE OF IOWA,                  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendant.                 :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1800; 1801; 1802; 1803.1
 
            Claimant was entitled to healing period benefits, four 
 
            percent permanent partial disability benefits, and temporary 
 
            total disability benefits for two injuries to claimant's 
 
            right hand.